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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.V. Gangapurwala, Shrikant D Kulkarni, JJ.
Nitin - Appellant
Versus
Union Of India - Respondent
Writ Petition No. 7836 of 2020
Decided On : 07-05-2021
Adoption - Juvenile Justice Act, 2015 - Sections 35, 38, 52, 56, 57, 58, 61, 67 - The court dismissed the writ petition seeking custody of a child under foster care, emphasizing the importance of following the procedures outlined in the Juvenile Justice Act, 2015 and the Maharashtra State Juvenile Justice (Care and Protection of Children) Rules 2018. The court found that the Child Welfare Committee and the Specialized Adoption Agency had violated several mandatory provisions of the Act and Rules, leading to the conclusion that the best interest of the child had not been protected. The court highlighted the importance of protecting the welfare of the child throughout the adoption process and emphasized that procedural laws should not hinder the administration of justice.
Fact of the Case:
The petitioners, a husband and wife, sought custody of a child under foster care, whom they intended to adopt. They had taken good care of the child during the foster care period and looked after her health with proper medical treatment. However, the Child Welfare Committee and the Specialized Adoption Agency had violated several mandatory provisions of the Juvenile Justice Act, 2015 and the Rules, 2018 in the process of giving interim custody of the child.
Finding of the Court:
The court found that the best interest of the child had not been protected throughout the adoption process, as the mandatory provisions of the Juvenile Justice Act, 2015 and the Rules, 2018 had been violated. The court emphasized the importance of following the procedures outlined in the Act and Rules to ensure the welfare of the child.
Issues: Violation of mandatory provisions of the Juvenile Justice Act, 2015 and the Rules, 2018 in the process of giving interim custody of the child, and the importance of protecting the welfare of the child throughout the adoption process.
Ratio Decidendi: The court emphasized the importance of following the procedures outlined in the Juvenile Justice Act, 2015 and the Rules, 2018 to protect the best interest of the child throughout the adoption process. It highlighted that procedural laws should not hinder the administration of justice.
Final Decision: The court dismissed the writ petition, concluding that the prayers made by the petitioners could not be granted, and discharged the rule with no order as to costs.
JUDGMENT
Shrikant D. Kulkarni, J. - Rule. Rule made returnable forthwith. Heard finally with consent of all the parties at admission stage.
2. The petitioners are husband and wife and permanent resident of Hyderabad, State of Telengana. Petitioner no.2 is childless because of infertility problem. Petitioner No.2 took medical treatment but no fruitful outcome. Therefore, the petitioners decided to adopt a child. They had been to the institution at Jalna. They attracted towards a child namely Dhanashri @ Reeya, who was having medical problems. The petitioners decided to take responsibility of that child on their shoulders. They were ready to incur all the medical expenses. They have decided to adopt the child Dhanshri @ Reeya and accordingly approached to the CWC at Jalna by filing an application. On 01.01.2020 the CWC passed an order and Dhanshri @ Reeya was handed over to the petitioners on the basis of Foster Care Order. The petitioners had decided to file petition for adoption before the District Court at Jalna but considering the health and medical condition of the child, they could not file petition immediately. But the petitioners have registered themselves with the Central Adoption Research Authority, New Delhi on 14.01.2020 as per procedure. The petitioners could not file the petition for adoption due to COVID-19 pandemic. The child was 3 months old when custody was given to the petitioners on the basis of Foster Care.
3. According to the petitioners, the child is now very much happy with the petitioners. On 10.09.2020 the petitioners received call from CWC, Jalna to remain present on 29.09.2020. On 29.09.2020 the child Dhanshri @ Reeya was not well and was under medical treatment since 06.09.2020. Moreover, due to Covid-19 pandemic it was not possible for the petitioners to travel from Hyderabad to Jalna. The petitioners requested to CWC Jalna to extend the time in background of illness of the child and Covid-19 pandemic.
4. On 30.09.2020 a notice was received by the petitioners on WhatsApp addressed to the Police Officials directing them to produce the petitioners and the child before the Child Welfare Committee on 05.10.2020. But due to some medical reasons and Covid-19 pandemic, it was not possible for the petitioners to travel with child of 10 months old from Hyderabad to Jalna and therefore, the petitioners again prayed for time.
5. On 16.10.2020, the petitioners filed an application before the CWC at Jalna to extend Foster Care period / agreement and also filed an application before the Central Adoption Resource Authority and State Adoption Resource Authority requesting to give the child Dhanashri @ Reeya to them in adoption. No reply was received by the petitioners.
6. Feeling aggrieved and dissatisfied by the impugned notices dated 10.09.2020 and 30.10.2020 the petitioners apprehended that their child may be removed from their custody and in that premise rushed to this court by invoking writ jurisdiction under Article 226 of the Constitution of India.
7. Heard Mr. Chaitanya V. Dharurkar, learned Advocate for petitioners, Mr. A.G. Talhar, Learned Assistant Solicitor General for respondent nos.1 & 2, Mr. K.N. Lokhande, learned Assistant Government Pleader for respondent nos. 3 to 5 and Mr. P.S. Agrawal, learned Advocate for respondent no.7.
8. Respondent No.6/Child Welfare Committee, Jalna, though served, did not respond and marked absent.
9. Perused the Foster Care order dated 01.012020 passed by the Child Welfare Committee, Jalna (CWC), impugned notices dated 10.09.2020 ad 30.10.2020 and other documents and papers produced by the petitioners along with list at page no.23. We have also perused copy of affidavit in reply sworn by the District Women and Child Development Officer, Jalna filed on behalf of respondent nos. 3 and 5 and the documents and papers produced by the State.
10. Mr. Dharurkar, the learned Advocate for the petitioners strenuously submitted that the impugned notices issued by the CWC, Jalna asking them to
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